Tuesday, December 27, 2011

still searching for an IP reform movement made up of grown ups

Julian Sanchez becomes approximately the 9 millionth Internet denizen to point out that various IP frauds aren't "stealing" in the conventional sense. He's right, there.

If you feel like you've read it before, it's because you have, dozens of times. Unfortunately, you likely haven't learned much. There's just way too much focus on this petty semantic issue. No, downloading something you didn't pay for isn't the same thing as stealing a jacket. But that doesn't mean that it has no negative impact, or that a free society doesn't have a legitimate interest in regulating it. Two things can be different, and yet each can be problematic, wrong, or contrary to the public's interest. I think the focus on the semantic issue has a simple motive: because the "downloading an MP3=stealing a CD" argument is so easily dismissed, it is tempting to keep prosecuting it and acting like one has really achieved something. It's weak manning, something Sanchez knows about.

As for disliking the term "piracy"-- well, tough. That's language. Communities adopt terms, and they don't always make sense, they aren't always fair, and we don't always like them. The very fact that "stealing" is not a term conventionally used to refer to downloading and "pirating" is tells you something about organic etymology.

I would really like it if Sanchez would expand on the point that, yes, copyright fraud is problematic. I think that, rather than telling the same story that has been told over and over again, and always to the same sympathetic audience that accepts the premises in the first place, Sanchez could carve out something new and useful. I am someone who is temperamentally and intellectually predisposed to support reform of copyright and patent laws. I think that there are many problems with copyright, patents, and trademarks. But at times I feel almost physically ejected from solidarity with others who do, because the majority of people who argue against IP online do so in such a willfully immature and unrealistic way. I can't tell you how many people I meet who say that there should be in effect no check on digital copying at all-- that everyone should have unlimited rights to copy all media and distribute it to anyone, for free and without compensation or consequence. You might imagine that I'm exaggerating, but years of experience online tell me otherwise.

When I try to point out that this would swiftly mean the end of much of the media they enjoy, they have no real response; they are stuck in the present world and can't imagine how radical a change that would be. But with perfect digital copying and no impediment to that copying, there's no profit motive to be found in producing these expensive and resource-intensive works.

And, I'm sorry, but dedicated amateurs can't produce Call of Duty; they can't produce Lawrence of Arabia; they can't produce Sgt. Pepper. The dreams of people like Chris Andersen are utopian and false. As Doug Rushkoff has pointed out, they have a lot of schemes for content generators to be paid as public speakers or "personal brand builders," but no compelling mechanism for content generators to be paid as content generators when they give everything away for free. And there's lots of negative consequences from asking every writer or musician to not be a writer of musician but a "brand." Yes, Jay-Z can get by on selling Vitamin Water and t-shirts, but the guy who actually has a new sound and not much else can't survive on free.

Also from Rushkoff: it's never actually free. If you're using Google and your ISP and your power company and your HP laptop to get this content, they're all getting paid. The fact that the costs are so small isn't the same as free, and repeated across millions of users millions of times, that means lots and lots of money... just not for the person who actually created the content you enjoy. You can check out Jaron Lanier's You Are Not a Gadget, for necessary pessimism on Linux and Wikipedia; for a description of how music piracy has devastated the musical middle class; and for an analysis and a lament about the death of the artist as a profession.

So many of the grand and self-aggrandizing claims of the pro-piracy crowd have fallen away, I can't even recount all of them. I've often heard that people who pirate something and like it will later pay for it, out of a sense of gratitude and obligation. Does that seem like an accurate portrayal of reality to you? How many people, honestly, do this? I was told for years that people who stop pirating music when there were cheap and reliable ways to access music online. Well, there are now literally dozens of ways to get music online, legitimately, in a way that gives at least a little bit of money to the artist who created it, and usually quite cheaply. Hasn't stopped piracy. People insisted that people only pirate from faceless corporate behemoths. Here's someone involved with the creation of the Humble Indie Bundle, an independent game pack produced for charity and available at whatever price the purchaser determines, showing that 25% of the people who downloaded the pack did so by pirating.

You also get hit over the head with studies that show, or purport to show, the limited effects of piracy, but they are either of dubious methodology or are wielded illogically. For example, a notorious study showed that people who pirate also spend more money on music than people who don't. OK, cool. It does not logically follow that the same amount of money is being captured by the music industry to cover what is lost in piracy. Pirates can spend more on music than their non-pirating counterparts and piracy can still be a net loss for the industry. I don't doubt that many interested parties often oversell the dangers or damages of piracy, and as I said, I support some very broad reforms of intellectual property law. But the loudest voices seem to want it both ways; they make a prescriptive claim that it should be legal to take what you want for free, and then do an end run around it by making the descriptive claim, with dubious evidence, that in fact taking everything for free doesn't hurt the profit motive.

More than anything, I'm weary of the historionics and self-aggrandizement of the pro-piracy set. To read about IP online, everyone who ever downloaded "Who Let the Dogs Out?" from Limewire is a truth-telling revolutionary, smashing a decrepit corporate structure and ushering us into a golden age of free culture, where movies and games and albums descend from heaven in a celestial ball of light into the waiting arms of the IP warriors, who send the love out through the tubes to all who desire them. Any notion of a "pirates code," the old scene ideas about rules and codes that you follow in pirating, has not been disseminated to the broader groups that download media now, apart from that specific cultural moment. Here's what I think: lots of people just want the stuff for free, and don't care about the consequences.

Well, I'll come out and say it: I think that's wrong. I think that it's wrong to make a digital copy of a piece of media that someone else has made and has offered up for compensation under the explicit condition that he or she be paid for it. I don't think that this makes me (or Doug Rushkoff or Jaron Lanier or anybody) some retrograde corporate stooge. And the constant effort to wrap this discussion up in revolutionary terms is just a distraction. I also think that the constant extension of copyright lengths is shameful, that DRM is almost always a useless annoyance and waste, that patents and patent trolling are totally out of control, that there has to be considerable reworking of conventions and statutes regarding fair use and appropriation, and so on. And I think that efforts like Steam and Amazon Music offer reasons for hope. I just think if someone works hard to produce intellectual content that other people want to consume, that person is entitled to reasonable compensation for that content. Call me old-fashioned. That attitude is less broadly assumed than you might think.

In the admirably level-headed and fair post I linked above about the Humble Indie Bundle, the blogger points out that they aren't going to slap lots of annoying DRM on the games, which I fully support. But he also says this: "No -- we will just focus on making cool games, having great customer service, and hope for the best. It sure seems to be working right now!" That's great, and I'm glad. But the fact that it is largely working for them doesn't mean that it will always work out for every producer. At some point, there's going to be (and have been) content producers who run the math and find that continuing to produce a given piece of media no longer makes economic sense, due to the erosion of revenues from piracy. Then everybody loses the product that would have come next. What I want to challenge is the pleasant fiction that such a decision could never be reached, or that our broader feelings about intellectual property and piracy don't make a difference in that regard.

I'd love to see Sanchez attack this issue not from a stance of aggravation, but from a devil's advocate or self-examination position. Take the hardest line possible against his own thinking and his own preferences and see how things hold up. It doesn't hurt to kick the tires. The argument about stealing just doesn't need to be made again.

Update: The inevitable whinge, with bonus retweeting by other paid-up members of the DC politico koffee klatsch. I was unaware that saying "I wish this person would write a bit about this other facet of an issue" is beyond the pale, but as time goes on, the DC social circle only gets more dedicated to circling the wagons.

Honestly, at this point, I really consider the DC blogging corp a pathetic environment. They are so enormously sensitive to any criticism (and this wasn't even really criticism!) that doesn't come from members of their own coterie and that doesn't meet preapproved standards of ass-kissing. I genuinely cannot fathom the mind that wants to be a writer but is afraid of argument that doesn't come wrapped in praise. Then again, I'm not living it up in the DC-area fiefdom, secure in the knowledge that social connections to my purported political antagonists will blunt any criticism. The whole edifice is designed to protect its members and quiet dissent; that is its first and last purpose. What a pack of pearl-clutching cowards.

Update: Since this has come up: SOPA is total, unequivocal bullshit.


Anonymous said...

“When I try to point out that this would swiftly mean the end of much of the media they enjoy, they have no real response; they are stuck in the present world and can't imagine how radical a change that would be.”

But for “culture consumers” wouldn’t that be a good thing? Per your resentment machine post. Hard to imagine that, in the vacuum left in their lives, they would be inspired to creative acts of their own but ...

ryan said...

I think one of the big problems with this whole debate is the assumption that royalties are an automatic and inherent part of copyright. They aren't.

Royalties are how publishers get paid. When a publisher--record label, movie studio, book publisher, whatever--offers royalties to an artist, they're basically offering to shift some of the risk and rewards of the publishing endeavor to the artist. This lets them offer a smaller advance, which lets them offer more works than they would otherwise. But it's basically asking to partner with the artist on a risk which isn't really particular to artists, but to publishers.

This is why there's such confusion about exactly who piracy is "hurting," even ignoring the fact that most publishers blatantly cheat on their accounting so as to never pay artists a dime in royalties. No, there's this sense that artists get paid for each copy of a work sold, when really that's something which is only inherently true of publishers.

The U.S. Supreme Court addressed this issue in Wheaton v. Peters in 1834, where it held: "The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published." If an artist wants to get paid, the way to make sure that happens is to charge an acceptable advance to the publisher and punt on royalties. Let the publisher deal with that risk. Again, there are arguments to be made as to whether or not this is optimal, but it certainly identifies and allocates the risks correctly.

Of course, this is made all the more complicated because copyright, which was originally a publisher's right, not an author's right, now applies to authors, not publishers.

I think until people work out that there's a difference between authorship and publication, this debate isn't going to go anywhere.

sweet tooth said...

Huh. Didn't realize people enjoyed 'media'. Thought it was just something we did to distract us from the howling incessant tragic emptiness of our post-Neolithic lives. I stand corrected.

As far as the whole piracy business goes, my fear as a would-be published author is that since ebooks make piracy virtually inevitable, they'll no doubt give the novel that final kick to poetry status; i.e. no way in hell you can make a living do this, so you better secure your academic credentials. Sucks, 'cause the novel is meant to be a loose popular form, not a coterie art drawing its last gasp of vitality from 'the flaneur tradition'.

My two cents.

Adam Ozimek said...

Interesting post, but I don't think this is a fair response to what Julian has written. In rebuttal to him you write:

"But that doesn't mean that it has no negative impact, or that a free society doesn't have a legitimate interest in regulating it. Two things can be different, and yet each can be problematic, wrong, or contrary to the public's interest."

But he writes:

"That’s not to say copyright infringement isn’t also problematic, or something the government needn’t worry about deterring."

Also, you write as if his only point is the same "copyright isn't theft" we've heard a million times before, but his core argument is actually:

"The pillaging of the public domain is real 'intellectual property theft.' How about a crackdown on that?"

which is a much more novel and interesting point you not only fail to give him credit for but act as if it doesn't exist.

Freddie said...

Adam, I specifically reference the line you've just quoted. I'm not accusing Julian of what you say I'm accusing him of. I'm simply pointing out that the constantly told tale of "digital piracy isn't stealing" is only a small part of the story, and in fact I thought I was praising him for at least mentioning that fact.

As for as novelty-- I don't think that's novel. I think that's boilerplate IP complaints. You really think that there aren't a lot of people out there complaining about Disney et al. constantly getting their copyrights extended and reducing the amount of work available in the public domain?

I want to see someone like Julian take the care he usually takes in prosecuting the anti-IP law to explore the other side. That is clearly asking too much, and of course is being swiftly punished by the blogging social circle which permits no preapproved criticism of its members.

To anonymous and sweet tooth, you are both making the same misreading of a prior piece. I never said you shouldn't enjoy media. I said that you shouldn't use the media you enjoy as a sorting mechanism to determine who you think you're better than.

Jargon said...

I think the best answer is a patron system. And I think that's actually a possible effect of the "everything is free" world you're imagining. Rich people are going to want to see movies, listen to music and play video games, and if people aren't making it because piracy makes it unprofitable, then I suspect some modern day Medici will pick up the tab.

We already have a patron system for many of the arts that no longer make money today, in the form of government grants. Many people are paying for art that they wont consume through their taxes. I don't think there's anything wrong with that, it allows the art to exist and be free for anyone, which is how art should be in an ideal world.

On an only tangentially related note, I worry about libraries in the future. Libraries aren't piracy of course, but if you make a truly modern library where anyone can access the books, movies, etc. from anywhere at any time, then that is for all intents and purposes piracy. If we continue down the path of digitization, towns aren't going to want to deal with the costs of a physical library, and won't be able to distribute digitally due to IP law. We could lose one of the only places where people can enjoy art for free without pirating.

sweet tooth said...

To Freddie:

No, you misunderstood me. I was not being ironic, but quite sincere. I believe our post-Neolithic lives are absolutely awful in every way except, for the privileged, comfortableness (Woo Hoo), and so I was just poking fun that anybody 'enjoys' any of these newfangled media. I mean, sure, my friends who play video games all day think they're enjoying themselves...but...um...

I know, I know, my perspective makes me an insipid neo-primitivist romantic blah blah blah.

As for people using the media as a sorting mechanism or what not, well, of course they do, our 'culture' is entirely ersatz and fake and the rot and homogenization and unreality has seeped so deep in our souls we are desperate for some hard edges, and since most people have zero contact with wilderness, the only place they can get a simulacra of those hard edges is by fetishizing taste. Quite humanly understandable, if also sad and pathetic and a waste of life.

You would be a better blogger if you widened your historical perspective and grasped just how much internet behavior is a coping mechanism for our wretched, empty, miserable lives. Of course, you're very sensitive and touchy about being the outsider, so I doubt you'll appreciate the imputation that you're not nearly outside enough!

At any rate, off to cultivate my own angst, be well!

Anonymous said...

People pirate stuff because they don't want to pay for it. All of the other rationales are just made up nonsense by people who can't admit that they just want free stuff.

Adam Ozimek said...


I agree "digital piracy isn't stealing" is the commonly told tale. But I think "in fact copyright extensions are more like stealing" is a fairly novel argument. Can you link to places you've seen it before? Yes, it's been said many times that copyright extensions are bad, but that they are more like stealing is distinct from just pointing out it's bad.

"I'd like to see more people grapple with the problem of disincentivizing content creation" is a fine complaint. I'm not saying you shouldn't have written this post. I just think Julian's piece isn't as trite and banal as you're saying.

Dan Miller said...

Freddie, what precisely could Sanchez carve out that was "new and useful"? After all, it's not like there's a shortage of people denouncing piracy--in fact, those people completely dominate our government on this issue!

Basically, there are two problems--widespread piracy, and the continued destruction of the public domain (via copyright term extension, among other things). Only one of these problems, however, is being addressed by the political system; in fact, the political system is making the other problem worse, in a futile attempt to solve the issues of piracy.

As long as we're calling for honesty, I'd think that the same would be called for on the people saying that piracy is an OMG HUGE PROBLEM. If we really make piracy a priority, we're talking about a world in which it's illegal to film your kid dancing, a world in which Etsy sellers have to lawyer up. These are the unavoidable costs if we make preventing piracy a real priority. I'm not OK with it. The cure is worse than the disease.

This isn't to argue that piracy is right, and I don't think Sanchez was arguing that either. But our current copyright regime, and the even-worse SOPA, are the equivalent of outlawing newspapers to prevent libel. It's ridiculous to say that before complaining about this state of affairs, you have to write a tut-tutting disapproval of piracy. When the public domain is safe and copyright terms have been knocked down to 20 years, then it'll make sense to focus on piracy. Not until then, however.

Adam Ozimek said...


Also may be worth noting I've never met Julian Sanchez and I've been to DC once in my life, so I'm hardly part of the DC social circle. So it's worth considering that a wagon circling may not primarily be why you're getting pushback.

jcapan said...

sweet tooth, read any Paul Shepard?

JM said...

The reason pirating is popular is because music industry is getting way more harsher with punishment.
Basically, what Dan said.

sweet tooth said...


You made my day (and it's been a shitty day, as I'm ill and housebound and reading anything serious is a serious drag). I've read ALL of Shepard. I thought no one else had heard of him but me and few Earth Firsters. He was wrong in a few particulars, but that was just because of the emphasis in the sixties and seventies on Australian ethnography. Overall he remains a great visionary and probably the most important thinker since Darwin, though of course his vision is much too tragic, and much too true, to be accepted by our wretched intellectuals. (Not surprisingly, my 'blue-collar' friends have a much easier time accepting the truth; they suffer it every day, and have much fewer status/caste defenses.) If you dig Shepard I strongly recommend as well Tim Ingold's The Perception of the Environment, another neglected through-the-roof masterpiece, and true.

jcapan said...

I’ve only read Man in the Landscape thus far, but was fairly blown away. I often mention him/his theories and there is no recognition and/or ignorant dismissal. I was thought of him the other day when Avedon Carol linked to a great comment by David Graeber:


Link to The Sideshow post, as the direct link is enormous. Will keep Ingold on my mental list.

sweet tooth said...

Man in the Landscape is the outlier, Shepard's first book. He had to go through it to get past it. The choicest meat is in the loose trilogy -- The Tender Carnivore and the Sacred Game, Thinking Animals, Nature and Madness. Shepard thought the last was his most important; I agree. You won't ever recover from reading it.

The last book, Coming Home to the Pleistocene, was published posthumously and is a fairly good summary of his basic ideas.

Anonymous said...

"I think that there are many problems with copyright, patents, and trademarks."

Start with this. Expand it. Stay with it. You too quickly leave this and get on the wrong track, ruining your essay. Missing the mark.

Dean Baker has made an imaginative proposal to deal with copyright and another one for patents. Look them up.

He strikes me as a grownup.

As it is now configured, copyright (you defend perpetual tithes to the Disney Empire? I think not.) and patents (ill disguised investment distortions) are little more than state sanctioned (economic) rent collection.

You're a socialist. Stand for radical change on this issue. It's what we're supposed to be.

Anonymous said...

I have downloaded the internet. I have all the songs. I would never pay for them. I am not using them, I am not listening. I've never bought "entertainment" "products" and I never will. I think they mostly suck and all sound the same.
Thieves and pirates take your booty from you, leaving you dead or penniless. No one has lost anything from my download. I left everything pretty much in place, exactly how I found it.
If you think you own something and every duplication of it that you or someone else makes, go after the photographers. They actually steal your soul with each flash! That's why I copyrighted my face and likeness. The paparazzi and tourists are the true pirates of our age and should be stopped.
I am lazy and greedy like you. I don't want to just write and make music for the sake of doing it - imagine how little music and entertainment would be made if there was little profit to be made from it! The horror! Sheer lawyerless anarchy would ensue, and only poor musicians and artists who care only about art and music would remain! Most people would have to start making real, useful things to sell!
It would be a nightmare of injustice! Useless, middlelevel musicians who can afford copyrights and lawyers should be able to make a comfortable living from their mediocre, derivative hobby-crafts!
And don't even think of quoting any of these words in the order I have placed them in! They are all mine, you petty pirates!

JM said...

I also have to disagree with deep ecology:it's not technology itself that's troubling, it's more of how it's being used to exploit others. That and deep ecology obsesses a bit too much over the
malthus theory
which is rather outdated AND the deep ecology movement seems contradcitory in places as well.
Have you looked into social ecology?

Brendan said...

I'm not generally a fan of Julian Sanchez, but his response to you is completely fair. You used his first two sentences as a jumping-off point for a general exposition of your views on digital IP and completely ignored the body of his post. I'd be annoyed too.

That Fuzzy Bastard said...

I don't see why Sanchez would need to be annoyed, even in his remark; it's just descriptive. Freddie took Sanchez's article as inspiration for his thoughts on copyright reform, which aren't---as Freddie himself notes---particularly influenced by or in response to Sanchez's actual thoughts. "Free-associating" is neither an inaccurate nor an insulting term for it. The only thing that's odd is Freddie's immense offense at having it so described.

Adam said...

I think it's hard to discuss patents, trademarks and copyright together. They are different types of property, and the issues around them are different (i.e., the problem with patents is largely about the poor quality of issued patents, and misusing a trademark has different costs than "piracy").

With that said, most of this post is about copyright, and that's where I think the most of the moralizing, and relatedly, most of the confusion, comes in.

Personally, I think what gets lost in viewing piracy of copyrighted material as a moral question is that what's really being lost is the ability to price discriminate. On the one hand, you have rights holders who want to get paid $X for each copy of their work, and tend to inaccurately see each pirated copy of as a loss of $-X. On other hand you have free advocates who see the loss associated with each pirated copy as zero.

Both, of course, are wrong. There is a set of "purchasers" who won't pay $X for the work and for many pirates, there is some non-zero price they might pay if there was a means to force them to.

Which, of course, is where the free bundle people and Radiohead's In Rainbow's experiments come in. They attempt to match price with the user's actually utility. But they are voluntary and therefore easy for the unscrupulous to abuse.

Unfortunately, unless there is a magic way to prevent copying and/or some type of enforceable auction system, it's a matching problem without a solution and content creators are just going to have to deal with it. Rather than get paid for each individual work, they need to view content creation as marketing for their live shows, sales of merchandise and premium content or even public media-style pleas for contributions. (All of which can be seen in the podcast world, e.g. Marc Maron, Smodcast, Nerdist, etc.).

That leads to a world that's different from the old model of elevated prices and reduced output of content, but with deference to Lanier's complaints, I'm not sure it's a worse world.

Adam said...

Jargon - In today's world, the patron need not be a single rich person but rather can be the collective group of consumers that value a given work. Although I think Freddie's point is that a shift to that sort of system will mean a lot fewer works. I don't know if that's true, but it's an empirical question that could be studied (and probably has).

staplovich said...

Broadly, I think you make a really important point: if we want people to produce quality art of whatever type, we will probably need to support them financially. Fair enough. But it's worth pointing out that under the traditional system of copyright, content producers were often totally screwed. Most of the money spent on CDs goes to everyone BUT the musicians involved. So the idea that by downloading music I'm necessarily taking some substantial amount of money from the creative types just doesn't seem true. I'm mostly taking money from all the various middle-people. Some of those middle-folks may actually do useful work: most of them are basically engaging in rent-seeking. It's a racket. And I'm happy to steal--yes, steal--from them.

Of course, you point out that you would like to see major reform of copyright law, etc. and that absolutely makes your whole piece valid. But it's worth pointing out that we live in a complex world--one of mostly grays, not black and white. So in the meantime, taking a hardline position that ever downloading music is somehow some cowardly, economically destructive act seems a bit overblown.

Near the end of the piece, you write, "I just think if someone works hard to produce intellectual content that other people want to consume, that person is entitled to reasonable compensation for that content. Call me old-fashioned. That attitude is less broadly assumed than you might think." This is, like I said, a really solid point. And sure, pirating advocates rarely have an immediate answer on hand to this issue. But under the current copyright system, artists are getting screwed as well.

That said, sure, plenty of the folks who like to defend pirating are full of shit. Good call. And I'll admit that I myself download plenty of media, and no, I don't buy the CDs later--though I definitely will go see bands I like at shows (which they can make much more money on, percentage-wise) and buy shirts, etc. at the shows.

Another aspect of this that needs to be addressed is that, honestly, some people are so wealthy that it's ridiculous to suggest that they'll stop doing what they do if they don't get paid enough. Does Matt Groening make new episodes of Futurama because he needs to pay off a mortgage? It seems unlikely.

Anyway, I'm rambling. Overall, I think your point is solid, but I think it'd be good to approach it from a less dichotomous position, though I understand your frustration with the high-and-mighty rhetoric of some of your detractors.

Anonymous said...

I am lazy and greedy like you. I don't want to just write and make music for the sake of doing it - imagine how little music and entertainment would be made if there was little profit to be made from it! The horror!

Although Freddie's argument has been properly transformed into the approved straw men, your tone is not in full compliance. To fully align it with approved opinion, please replace "The horror!" by "Oh noes!" Thank you.